Nickerson v. Tirrell, 127 Mass. 236

Nickerson v. Tirrell

127 Mass. 236 | Mass. | 1879

Morton, J.

The general rules of law applicable in cases of this character are well settled. The owner or "occupant of a dock is liable in damages to a person who, by his invitation express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes 01 permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock, but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care, if there is a defect which is known to him, or which by the use of ordinary care and diligence should be known to him, he is guilty of negligence and liable to the person who, using due care, is injured thereby. Wendell v. Baxter, 12 Gray, 494. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. Thompson v. Northeastern Railway, 2 B. & S. 106. Mersey Docks v. Gibbs, L. R. 1 H. L. 93.

In the case at bar, there was conflicting evidence as to the state of the dock and as to the cause of the injury to the plaintiffs’ vessel, and the presiding judge was required to submit the case to the jury. He did so, with instructions which are in substantial accordance with the rules stated above. The defendant contended, from the evidence, that the vessel was wider than those which usually occupied his dock, and he asked the court to give two instructions which were properly refused. The first instruction requested would exonerate the defendant from liability if, knowing that the vessel was of unusual width, he *240had invited the plaintiff to lay her there. The rule of law is not, as argued by the defendant, that he was only bound to keep his dock “ safe for that class of vessels which ordinarily came there,” but was correctly stated by the presiding justice to be, that “ the defendant was bound to exercise ordinary and reasonable care that his dock should be in a suitable condition for such vessels as he invited or allowed to come there.” The second request bears upon the question of the due care of the master, and was rightly refused. It could be supported only upon the theory that it was, as matter of law, negligence for the master to lay his vessel in this berth, without previous examination or measurement, knowing that his vessel was broader than most vessels of the same class, but not knowing that the berth was too narrow for her. The true rule was stated to the jury, that the master was bound to use ordinary care, and could not carelessly run into danger. We cannot say, as matter of law, that he was negligent because he did not examine or measure'the dock and berth. It was for the jury to determine whether the conduct and conversation of the defendant excused the master from making any more particular examination than he did make, and whether, upon all the evidence, he used such care as men of ordinary prudence would use under the same circumstances.

Upon the whole case, we are of opinion that the instructions requested were properly refused; and that those given are not open to exception by the defendant.

Exceptions overruled.